Business Law

Introduction to Business Law

Business law is the type of law which is being formae d for the such type of individuals that are being involved in some commercial activity relating to buying and selling of goods and services (The association of business executives, 2014). The given law covers varied areas that is being teach to the individual in the curriculum of business or law school. It involves income tax, intellectual property law, pensions and benefits, labour and employment law etc. In addition to this it can be said that this evaluates topics which influence the activities of the business and corporations. The present research study provide deep knowledge regarding Alternative Dispute Resolution and its purposes. The importance of ADR in resolving disputes outside the formal judicial process, in the context of Acas will be assessed in this study. In addition to this the report will discus that why European Union law takes precedence over domestic law in the United Kingdom (ACAS, 2015).

PART B WRITTEN REPORT

Purposes of ADR

In general term, Alternative Dispute Resolution (ADR) is being considered as the method in which disputes occurring between the parties are resolved other than the legal proceedings. The term is being also called by the name of an effective dispute resolution. The public court asked the organizations with respect to review the validness of the different type of Alternative Dispute Resolution methods. However, there are very fewer circumstances occurs in which the decision being taken by the ADR is being overturned. In accordance with the given aspect, there are two different types of ADR identified. It consists of following such as Mediation and Arbitration etc (Zhu, Kraemer and Dedrick, 2004). In addition to this, ADR is the activity of process in which parties voluntarily entered in the process of resolving their disputes. The major purpose of ADR is to manage business disputes outside of the courtroom. Generally, there are ranges of methods of ADR that can be used by the entities to solve their business disputes without using long and complex process of court. Thus, it can be said that conciliation, evaluation, negotiation, arbitration and mediation are being regarded as some basis form of ADR.

Whereas Alternative Dispute Resolution is always been into the practices, since the varied rules relating to the civil procedure being formed in the year 1999. In addition to this, many of the judicial court are directing their efforts in terms of encouraging the parties with regard to use the ADR proceeding in the place of litigation (Zhu and Kraemer, 2005). Further, with this there are various rules imposed by the CPR in which it entails that each cases must be managed as well as handled in an effective way. In addition to this, CPR also states that the parties should have to use the processes of ADR with an aim to resolve their issues. However, the given process needs to be used by them if the court give them the permission with regard to use the same.

The court play very significant role in case management in ADR methods. In addition to this, the major role of the court is to deal with and finally determine disputes in accordance with the civil procedure rules, and it also play very significant role in ensuring that the parties consider ADR (Beams, Brown and Killough, 2003). Hence, it is clear that the main objective of it is to save time of the court by solving the business disputes outside the courtroom. This is establish to reduce cost of legal process of the government as well as both the parties. Thus, it is normally voluntary, faster, less costly, easier, less formal, less confrontational and also less adversarial Generally there are ranges of different methods of ADR that have own purposes which can be discussed as below.

Negotiation: This is simplest and easiest ways of solving the business disputes. In the given technique, parties direct their efforts in terms of resolving the disputes at their own way or through mutual talk with other party or individual (Chaney and Martin, 2013).

Mediation: It is being regarded as the structured way of performing the negotiation. Here, all the work relating to the management is being fulfilled by the third party. The decision taken through negotiation became legal binding agreement.

Conciliation:It is another form of mediation but here the solution is being proposed by the conciliator.

Neutral evaluation:It is being considered as the type of non binding method. Here third party who possess thorough knowledge regarding all the legal aspects present their suggestion in front of parties regrading the specific problem being faced by them.

Expert determination: It is the type of private procedure where one individual who has expertise in legal affairs as well as have inquisitorial powers provides their decision (Czinkota, Ronkainen and et.al., 2009). The given approach has the main aim with regard to resolve the disputes within very minimum amount of risk.

Arbitration: It is a private, formal and binding procedure in which the disputes are solved with the help of decision being taken by the appointed third individual and the arbitrator.

Litigation: This is the formal procedure in which claims made by the parties are being presented in front of the civil court. Here all the legal proceedings are being held in front of the public. Here whatever decision being taken by the judge needs to be followed by parties as it became legal binding.

On the basis of above evaluation the purposes of ADR can be explained as below.

To resolve disputes at an early stage and reach more satisfactory results (DiMatteo, 2002).

To reduce the cost involved in managing disputes viz: opportunity cost involved in management time dedicated to dealing with disputes.

To minimize the cost of litigation

To improve management skills by using an innovative approach.

To disseminate best practice in a modern and diverse workplace

To forward plan to set in place mediation skills and training facility for the company in advance of the expected legislative requirement (Downes, 2009).

To lead the sector in UK by developing best practice in a range of dispute resolution method.

Successful means of resolving disputes outside the formal judicial process in the context of ACAS

There is one non departmental public body of UK government is being identified. It is of The Advisory, Conciliation and Arbitration Service (ACAS). The given association has the main objective with regard to develop an effective industrial relationship within the enterprises that is being functioning in UK. With an aim to develop an effective relationship between employers and employees, the given association organizes various training programs as well as it also gives the services of conciliation. It is through such type of practices only, problems occurring within the workplace being resolved by it (Johanson and Vahlne, 2003). In addition to this, it can be said that ACAS are a government entity which aims to improve business and working life with the help of building an appropriate relationship between employers and employees. In addition to this, in this regard it offers varied alternative dispute resolutions. Thus, it can be said that wherever there is any kind of disputes occurs within the workplace at that time ACAS plays the role of mediator. Here, it works in a manner in terms of providing solution to the specific problem in an effective way.

In addition to this, there is a another role identified which is being played by the association named as ACAS. The given association frames code of practices for the grievance procedure and dismissals etc (ACAS, 2015). Here, the parties are being punished by the court if the code of practices being framed by the association is not being fulfilled by it. Here, court gives punishment to the parties in the form of compensation that is being required to be paid by the party who is in the fault. There are some dispute resolution assessed that is being offered by ACAS. These are all explained as below:

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Arbitration: It is a freewill technique of disputes resolution which both the parties must agree to undertake in advance. Third party or person play very significant role in decision making, and the binding decisions will be made on the basis of evidence provided by both the parties such as employee and employer (ACAS, 2015). Here, all the work relating to the management is being carried out by the arbitrator. Here, arbitrator takes the input from both and parties and after considering their viewpoints he will take an effective decision. Thus, it can be said this is very effective way of solving issues of employment with the help of ADR.

Conciliation: This is also freewill tool of ADR which both the parties such as employee and employer must decide to undertake in advance. Additionally, this method is utilized in the condition in which worker is interested in terms of taking the strict action against the employer. In this kind of technique, an self-directed mediation advisor will discuss the assessed issues with the given parties. Through this way, parties saves themselves in terms of taking the issues in front of the court or tribunal (The association of business executives, 2014).

Collective conciliation: In the condition, where representative groups such as employers and workers trade union carries out settlement of their disputes by taking the assistance from the conciliator. It being called by the name of collective conciliation.Thus, this is also very significant and successful way of resolving disputes of ACAS outside the formal judicial procedures (Nichols, 2012).

Mediation: The main objective of this approach is to develop an appropriate working relationship between employers and employees. The given approach does not rely more focus on taking an effective decision. Here, it contains a specific individual who is impartial to both the parties. In this respect, it carries out discussion with the parties and it is through such type of efforts only problem being faced by the parties being identified by it. Thus, the activities as being carried out by the mediation helps in terms of resolving the disputes occurring between the parties as the result of it an effective environment is being developed at the workplace. Thus, in the given form of ADR necessity of the high and effective communication between the parties is being arises.

Collective mediation: In the condition, where representative groups like employers and workers union carries out the settlement of their disputes by taking assistance from the mediation; it is referred to as collective mediation (Peng and Zhou, 2005).

The above evaluation represents that there are ranges of methods of ADR which playing very crucial roles in solving problems of employees and employers. These methods are successful in resolving disputes of ACAS outside the formal judicial procedure.

(II) Why EU law takes precedence over domestic law in the UK

Law of government of United Kingdom and European Union play very significant role in business operations of the nation. There are ranges of ways in which government influences business operations of nations. It comprises of training and education policy, global policy, employment related policy, taxation and inflation related policy etc (Porta, Lopez‐de‐Silanes and Shleifer, 2006). Normally, there are two basic type of principles assessed that is being involved in the community law of United Kingdom. It is of Section 2 (1) and Section 2 (4) relating to the European Communities Act 1972. Section 2 (1) reveals that all the rights of community and the treaties needs to be instantly applied in UK. Moreover, the rights identified should be directly enforceable in the UK tribunal. Whereas, the another section of European Communities Act 1972 reveals that the English law framed need to be understood by the parties as nowadays European law is preceding all the domestic law.

In addition to this, in accordance with the section 3 of European Communities Act 1972, the interpretation as being given by the community treaties as well as civil law needs to be considered as the questions of law that needs to be assessed by the European Court. Here all the matters is being decided in accordance with the decision being taken by the European Court of justice (Zhu and Kraemer, 2005). UK joined the EU in 1975 by signing the contract. In this respect, four basic type of community laws being identified. It is of regulations, treaties, decision and directives etc. The treaty article of 10(5) creates obligations upon all the members of country with regard to make an effective measure. It ensures that all the obligations whether is of particular or general needs to be abide by the member of country. UK is obliged with regard to apply all the obligation relating to the community by seeking assistance from Welsh and English court. Moreover, the European Community Treaty article 249 lays all the law relating to the power of community institution. The regulations p revelling in the article 249 are general in nature and it automatically applies to all the members of country such as UK (Zhu, Kraemer and Dedrick, 2004).

The treaties and regulations are the conditions of direct effect and it is being revealed by the European Court of Justice. The European community law is defined as the provision that gives rise to the effect that has direct impact. This thing reveals that such law can be evoke by the citizens of European Union towards the member of European union under the state domestic judicial. The European Court of Justice also sates that community law is being dominated against the country law if conflict occurs between the parties from both the statement being given by ECJ and the treaties. Thus, it can be said that Section 3 creates the binding upon all the UK courts that all the issues of community law needs to be handle as well as explained in accordance with the rules of ECJ. In addition to this, the UK court is also bind to take the opinions from ECJ before carrying out any legal proceedings (Beams, Brown and Killough, 2003).

Thus, it can be said that the court of UK are obliged with regard to given the priority to the community law over the legislation of United Kingdom. Thus, the above evaluation states that EU law takes precedence over domestic law in the UK because the court and government of UK are obliged by the membership contract between EU and UK (Chaney and Martin, 2013). Here the ECJ has the main responsibility with regard to ensure that all the provisions being framed by the European union is being effectively executed by the members of states. In this respect, there is a one case identified in which legal proceedings were held between the parties because of the dispute occurs over the fishing related right in the coastal water of British. It is the case of R v Secretary of State for Transport, ex parte Factortame (No. 2) [1991] AC 603.

There is one policy on fishing identified. It is of Common Market Fishing Policy. The given policy aims for conserving the fishes of the country. In this respect, the given policy reveals that certain quotas for fishing needs to be set. In the year 1985 the license system is being developed by the government of UK. It is based upon the following act such as Merchant Shipping Act 1988. (Czinkota, Ronkainen and et. al., 2009). In 1980, it was done by the Spanish organization that owned few vessels by making improvements in the entities of UK for the purpose of availing themselves of the fishing quota of United Kingdom. Later, it was discovered that the MSA 1988 is ineffective against the EC laws. The given thing is occurred because of the influence of Factortame.

Appeal is being given by the Factortame to the house of loads after when order relating to the injunction is being aside by the court of appeal. There is very little amount of relief is being given by the court upon the rules and regulations specified under MSA 1988. Here, some parts are completely vanished by the court that is overlooking the community law. Hence, it can be stated that there may be some way to improve the EU regulations that can affect the companies of people of the UK (The association of business executives, 2014). But, there are different concepts identified that comply with the such type of practices such as indirect effect, direct applicability and direct effect etc. Thus, it can be stated that ECJ has played very crucial role in terms of imposing obligations upon all the court with regard to give priority to the EC law.

CONCLUSION

On the basis of above research report it can be concluded that the major purpose Alternative Dispute Resolution is to resolve business disputes outside the formal judicial process or courtroom. There are ranges of methods of resolving problems through ADR, such as negotiation, mediation, conciliation etc. European Union law takes precedence over domestic law in the United Kingdom as law of EU is capable in resolving various kinds of business disputes. Hence, it can be stated that there are ranges of ways with the help of which business can be conducted within the nation such as UK (Peng and Zhou, 2005). There are ranges of legal responsibilities of employers in respect of their employees, such as health and safety, standard remunerations etc.